The El Paso Independent School District may have violated state law by withholding public records involving a contract that led to the indictment of the district's superintendent, a Texas open government expert said.

The district didn't provide records sought by the El Paso Times in December 2009 on contracts and invoices involving Infinity Resources ... & Associates. It also did not seek permission from the Texas Attorney General's Office to withhold the records, as required by law.

The records focused on EPISD's dealings with Infinity, which led to the federal indictment of Superintendent Lorenzo García in July.

Several days after Garcia's indictment, the Times filed another request for such documents, and this time, the district complied. The district provided records that showed EPISD spent $360,000 in August 2006 with Infinity -- owned by Tracy Rose, with whom Garcia had a personal relationship -- through a no-bid contract.

The district may have violated the state's Public Information Act by initially not providing the documents, said Joseph Larsen, a Houston-based first amendment attorney and board member of the Freedom of Information Foundation of Texas.

The Texas Public Information Act states that "an officer for public information, or the officer's agent, commits an offense if, with criminal negligence, the officer or the officer's agent fails or refuses to give access to, or to permit or provide copying of, public information to a requestor.

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"From what I've heard, there is sufficient evidence of criminal negligence to warrant an investigation by the El Paso County district attorney," said Larsen.

School district administrators declined to comment on why the district didn't provide the documents in response to the December 2009 request.

"EPISD staff will be unable to accommodate your request for an interview because of the on-going investigation and pending litigation," district spokeswoman Renee de Santos said in an email last week.

A violation of the state's Public Information Act is a misdemeanor that is punishable by up to six months in jail, a fine of up to $1,000, or both. Under state law and district policy, Garcia was the officer for public information for the school district when the requested information wasn't provided.

Initial request

On Dec. 11, 2009, the El Paso Times requested, "copies of all invoices submitted by Infinity Resources ... & Associates for services provided to the school district." The Times also sought "a copy of the contract between the school district and the company and copies of any district documents that show how that contract was approved."

Luis Villalobos, then the school district's point person for public information requests, provided a brief response on Jan.

8, 2010: "The vendor Infinity Resources is not in our current vendor master file (meaning no payment for at least two years). There was no payment to this company for Fiscal Year 2010, 2009, 2008, and 2007."

Records obtained by the Times this year showed two payments of $180,000 each to Infinity in August 2006, less than a month before the period covered in the EPISD response. The Times' initial request asked for all district documents regarding payments to Infinity without mentioning any time frame.

The subsequent request by the El Paso Times in August 2011 yielded invoice information, check copies, and an executive summary provided to the board prior to the approval of the contract.

Larsen said the district's initial response seemed intended to divert the El Paso Times from further pursuing the issue by implying that it did not have any responsive documents.

"The information was obviously there," Larsen said. "You've got (a later) FBI investigation, so there is plenty of motive to try to throw the requestor off the track here. That's suspicious because, ultimately, this thing drew law enforcement attention."

John Davis, with the El Paso County District Attorney's Office, said the situation merits further review. He said that since the District Attorney's office does not typically conduct investigations, a complaint would have to be filed and then investigated by the El Paso Police Department before the two-year statute of limitations runs out.

"There's probably enough to at least bear looking into, but it would have to come from a referral," Davis said. "We wouldn't just jump out there and jump on it without someone complaining about it."

Board president responds

Although district administrators declined comment on why the records weren't produced following the 2009 request, school board president Isela Castañon-Williams agreed to discuss the matter with the Times.

She first cited the possibility of "human error."

"Had the board known that this request was being made, of course, I can't imagine one board member who would not want to have the information disclosed as required by law. However, given the fact that, at that point in time, open records requests were not brought to the trustees, we have to allow for human error in that request not being fully met," she said.

In a subsequent telephone interview, Castañon-Williams defended the district's handling of the request. She said at the time a district procedure only required administrators to look back two years when researching public information requests on vendors, unless the person seeking the information specified otherwise.

"Given the fact that there was no specified date on the original open records request at that time, these folks were only looking back two years because that would have been something contemporary and normal and they didn't see it," Castañon-Williams said.

"I know that you're thinking 'well God, why would I have to do that?' but that was how the district was operating at the time," she added.

However, the January 2010 response went back beyond two years -- to fiscal year 2007, which began on Sept. 1, 2006. The payments to Infinity were made on Aug. 4 and Aug. 18, 2006, according to records provided to the Times this year.

Castañon-Williams was unable to provide information or documentation on whether the district had outlined that procedure in writing. District officials said through an email Friday evening that no written procedure existed but it was "standard practice."

"This specific vendor information had already been archived and was no longer in the active file because it had been more than three fiscal years since a purchase order or payment was issued," de Santos said in an email.

De Santos then said she was unable to answer follow-up questions about why the district did not inform the Times that it had such a procedure, who established the procedure and what the process is for retrieving archived information. She would not connect the Times with an administrator who could answer such questions.

According to the district's policy on Public Information Act requests, "if the requested information is unavailable because it is in storage or active use, an officer for public information shall certify this fact in writing to the requestor and set a date and hour within a reasonable time when the information will be available for inspection or duplication."

Larsen, the Freedom of Information Foundation of Texas board member, said Texas governments cannot arbitrarily and unilaterally narrow a request for information.

"I would really be interested to know what basis the district thinks it has for adopting a procedure like this when there is simply no authority for it in the Public Information Act and it's so deceptive," he said.

Villalobos, now retired from the district, said he could not recall all the details of how the request was handled but said it was sent to the district's finance, business office, or purchasing departments.

He said that by practice, Garcia and Terri Jordan, his chief of staff at the time, also would have received copies of the media response. Jordan is now the district's interim superintendent.

"We forward whatever documents or responses are given back to us from the appropriate department and forward it to the requestor as a best attempt on our part to satisfy the request," Villalobos said.

He added that when a department gets such a request, "you assume that they are doing the research and the response is as accurate as possible."

Larsen said Texas' government transparency laws rely on the honesty of public officials.

"If the governmental bodies don't act in good faith, then the public winds up on the short end because we don't have x-ray eyes to see into their files. We can't read their minds," he said. "We can only go by what we're told and we have to assume that we're being told something in good faith."

Awaiting trial

Garcia has pleaded not guilty to the charges of fraud and embezzlement and is awaiting trial.

The FBI claims that before García was hired at EPISD, he gave $5,000 to Rose. About $4,000 from that payment was deposited into the bank account of Infinity Resources ... & Associates.

Garcia then, as superintendent of EPISD, allegedly persuaded Rose to seek a no-bid contract with the district.

The executive summary for a July 11, 2006, school board meeting indicates that administrators asked trustees to approve a $450,000 contract for math materials and staff development from Infinity Resources ... & Associates.

Rose received two payments of $180,000 each on Aug. 4 and Aug. 18, according to district checks and invoices. District officials have said she never received the remaining $90,000 approved by board members because she did not provide additional materials.

School district officials said no written contract was ever drawn up for Infinity Resources ... & Associates. Administrators in past interviews contended that the purchase orders for the materials serve as a contract.

Rose, who was not required to submit a detailed proposal with examples of the materials she planned to provide or with itemized costs before being awarded the contract, supplied the district with a sparse set of posters and handouts.

One poster listed the numbers 1-20, spelled them out and included pictures. For example, it had the number 8, spelled out eight and then showed eight strawberries.

A multiplication and division handout, titled Fact Families, showed that 6 multiplied by 4 equals 24 and 24 divided by 4 equals 6. The chart had several blank spaces intended for students to repeat the exercise.

Zahira Torres may be reached at ztorres@elpasotimes.com; 512-479-6606.